Freeport-McMoRan Morenci, Inc.

Plain-English summary

Freeport-McMoRan asked the Commission to reopen a penalty assessment after MSHA had no record of receiving the operator's contest. Freeport said it mailed the contest well before the deadline but could not prove delivery because it did not use certified mail. The company stated that this departed from its normal practice and that it had added controls to prevent a recurrence. The Secretary did not oppose reopening, and the Commission reopened the assessment and remanded it for further proceedings.

Decision snapshot

• Cited provisions: 29 C.F.R. §§ 2700.1(b) and 2700.28; 30 U.S.C. § 815(a)
• Outcome: The final penalty assessment was reopened and remanded for proceedings on the merits.
• Key point: An operator that cannot document delivery of a contest may obtain reopening when it shows timely mailing, corrective controls, and no opposition from the Secretary.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 20, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

FREEPORT-MCMORAN MORENCI, INC.

:

:

:

:

:

:

:

Docket No. WEST 2012-463-M
A.C. No. 02-00024-273984

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2006) (“Mine Act”). On February 7, 2012, the Commission received from
Freeport-McMoRan Morenci, Inc. (“Freeport”) a motion seeking to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act,
30 U.S.C. § 815(a).

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed
penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment
is deemed a final order of the Commission. 30 U.S.C. § 815(a).

We have held, however, that in appropriate circumstances, we possess jurisdiction to
reopen uncontested assessments that have become final Commission orders under section 105(a).
Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.
See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable
by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed
that default is a harsh remedy and that, if the defaulting party can make a showing of good cause
for a failure to timely respond, the case may be reopened and appropriate proceedings on the
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

The record indicates that the proposed assessment was delivered on December 8, 2011,
and became a final order of the Commission on January 9, 2012. Freeport asserts that it timely
mailed its notice of contest on December 20, 2011, but has no postage tracking information since
it did not use certified mail. Freeport states that this is not its normal practice, and that controls
have been established to ensure this does not happen in the future.

The Secretary does not
oppose the request to reopen, but notes that there is no record that the penalty contest form was
received by the Department of Labor’s Mine Safety and Health Administration’s (“MSHA”)
Civil Penalty Compliance Office in Arlington, VA, and no record of a payment received by the
MSHA payment center in St. Louis, MO. The Secretary urges the operator to take steps to
ensure that future penalty contests are timely filed.

Having reviewed Freeport’s request and the Secretary’s response, in the interests of
justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment
of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Richard Roethle

Regulatory Compliance Specialist

Freeport-McMoran

4521 U.S. Highway 191

Morenci, AZ 85540 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021